S.17A PCA | Special Court Can Initiate Enquiry U/S 156(3) CrPC But Without Taking Assistance From Police: MP High Court

The Madhya Pradesh High Court recently held that a special court constituted under the Prevention of Corruption Act is not barred under Section 17-A of the Act from initiating an enquiry on receipt of complaint under Section 156(3) CrPC. Section 17-A of the Act statutorily prohibits the police from conducting enquiry/inquiry/investigation into any offence punishable under the Act arising from "recommendation made" or "decision taken" by public servant without previous approval of competent authority. The division bench comprising Justices Sheel Nagu and D.D. Bansal further observed that the enquiry so initiated ought to be conducted without the assistance of the police- True it is that Police Officer alone has been restrained from conducting enquiry/inquiry/investigation but the said argument can be put to rest by the well established principle of law that what cannot be done directly in law also cannot be done indirectly. [See: Gian Singh Vs. State of Punjab and another, (2010) 15 SCC 118 Para 7). Therefore, the enquiry/inquiry can very well be conducted u/S. 17-A by Special Court but without involving the police. The Special Court is thus not prevented from conducting enquiry/inquiry at its own level while dealing with an application u/S. 156(3) Cr.P.C. but without assistance of the police. In this manner, the sweep, extent and object of Sec. 17-A remains unoffended. Facts of the case were that the Petitioner/Complainant had moved an application before the lower court under Section 156(3) CrPC alleging offences punishable under Section 13 of the Prevention of Corruption Act and under Sections 420, 467, 468, 471, 120-B IPC against two public servants. However, the same was rejected by the special judge for want of sanction for prosecution by the competent authority. It had placed reliance on the decision of the Apex Court in Anil Kumar & Ors. v. M.K. Aiyappoa & Anr.. Aggrieved, the Petitioner moved the Court. Dissecting the provision under Section 17-A of the Act, the Court noted that the legislature used the term "approval" and not "sanction", however the former is not defined under the Act. The Court opined that perusing the dictionary meaning of the two terms, the word "approval" is used in general context- Since the term "approval" is neither defined in the PC Act nor in Cr.P,C., one has to fall back upon the dictionary meaning of the phrases. From the aforesaid dictionary meanings and usage of said two expressions, it is apparent that the cardinal difference is that "approval" is used in general context while the expression "sanction" is used in official, formal and legal context Moreso, "approval" denotes giving consent while "sanction" is grant of formal permission to do something or to impose/authorize punishment. This Court need not enter into the realm of knowing the exact meaning of these two expressions since the issue involved herein does not expect this court to do so.The Court then went out to analyze the decision in the Anil Kumar case. It noted that the Supreme Court had held that before passing any order under Section 156(3) CrPC, grant of sanction for prosecution is necessary as a pre-condition. Having said that, the Court did not lose sight of the fact that the said judgement was passed prior to Section 17-A of the Act coming into existence- In Anil Kumar (supra), the Apex Court was faced with factual scenario in pre-amendment era (i.e. prior to 26.07.2018). The Apex Court in Anil Kumar (supra) thus had no occasion to deal with Section 17-A for the obvious reason that said provision did not exist when Anil Kumar (supra) was decided. Anil Kumar (supra) was decided by Apex Court in the backdrop of factual matrix where an application u/S 156(3) alleging offence inter alia under PC Act was allowed by the Special Judge directing for investigation by Police whereafter the accused successfully approached the High Court of Karnataka which quashed the order of Special Judge holding that no such direction can be passed in the absence of sanction for prosecution. Apex Court in Anil Kumar (supra) dismissed the petition filed by the complainant upholding the order of the High Court. Meaning thereby that Anil Kumar (supra) laid down that before passing any order u/S.156(3), grant of sanction for prosecution is necessary as a pre-condition. Thus, the Court observed that since in the Anil Kumar case, the Apex Court did not get an opportunity to examine Section 17-A of the Act, the extent and sweep of the protection and prohibition prescribed at pre-cognizance stage under Section 17- A had to be ascertained based on the words and phrases employed therein.Scrutinizing the language of Section 17-A, the Court held that while the police is barred from proceeding with an enquiry/inquiry/investigation into any offence without seeking the requisite sanction, no such embargo is placed upon the special court- On coming...

S.17A PCA | Special Court Can Initiate Enquiry U/S 156(3) CrPC But Without Taking Assistance From Police: MP High Court

Zeeshan Thomas

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